Date: 20120118
Docket: A-358-11
Citation:
2012 FCA 14
CORAM: BLAIS C.J.
BETWEEN:
AIR CANADA
Appellant
and
MICHEL
THIBODEAU
and
LYNDA
THIBODEAU
Respondents
and
THE
COMMISSIONER OF OFFICIAL LANGUAGES
Intervener
REASONS FOR ORDER
BLAIS C.J.
INTRODUCTION
[1]
This is a motion by the
Commissioner of Official Languages for leave to be added as a party to the
appeal in Thibodeau v. Air Canada.
[2]
In the alternative, the
Commissioner asks that the Court grant him intervener status, allow him to
participate fully in the appeal by filing a memorandum and making written and
oral representations on all the issues, and grant him the right to appeal
against this Court’s decisions.
[3]
For the reasons that
follow, the Commissioner’s principal motion will be denied, and the alternative
motion, with Air Canada’s consent, will be granted.
[4]
I will not revisit the
factual background of this case since it is well-known to the parties and does
not appear to have been the subject of dispute.
INTERVENTION OF THE COMMISSIONER AT TRIAL
[5]
By order dated June 11, 2010, Prothonotary Tabib granted the Commissioner full intervener status,
including leave to take part in cross-examinations, make written and oral
representations and appeal against any decision of the Court, just as a party
to the proceedings may do.
[6]
It appears that, in Federal
Court, the Commissioner made oral representations on all of the issues while
focusing especially on the issue of the relationship between the Convention
for the Unification of Certain Rules relating to International Carriage by Air (Montréal
Convention) and the Official Languages Act (OLA). He was also given the
right to reply at that time.
INTERVENTION OF THE COMMISSIONER ON APPEAL
[7]
In preparation for the
hearing on March 28, 2011, the Commissioner filed a memorandum of fact and
law covering the entire file. In the memorandum, he submits, among other
things, that
a.
the OLA takes
precedence over the Montréal Convention;
b.
the complainants are
entitled under section 79 of the OLA to file as evidence complaints of the
same nature concerning Air Canada; and
c.
Federal Courts have the
authority to grant any relief that is appropriate and just, having regard to
the circumstances, including damages.
[8]
The Commissioner now
submits that it is in the interests of justice to grant him co-respondent
status on appeal.
ISSUE RAISED BY THIS MOTION
[9]
To ensure a full and
thorough consideration of the issues, does the Commissioner of Official
Languages need to be granted leave to act as a party to the proceedings?
ANALYSIS
[10]
An order to add an
applicant as a party to proceedings under Rule 104(1)(b) of the Federal
Courts Rules, SOR/98-106, is discretionary (Stevens v. Canada
(Commissioner, Commission of Inquiry) [1998] 4 F.C. 125 at paragraph 10 (F.C.A.) [Stevens]). This principle also applies to the
mechanism provided for in paragraph 78(1)(c) of the OLA, which
states that the Commissioner may, “with leave of the Court, appear as a
party to any proceedings” [emphasis added].
[11]
The judge’s discretion
is guided by one test alone: necessity. In Stevens, above,
Justice Stone referred to English case law to explain the requirements of
the necessity test:
Although the present
appeal is concerned with a claimed misjoinder of party, it is instructive to
have some regard to the decided cases which have dealt with joinder of a party
under similar rules of practice. In Amon v. Raphael Tuck & Sons Ltd.,
[1956] 1 Q.B. 357, the Court was asked to add a defendant to the action
pursuant to Order XVI, Rule 11 of the English rules of practice. By that Rule the Court was
authorized to join any person “whose presence before the court may be necessary
in order to enable the Court effectually and completely to adjudicate upon and
settle all questions involved in the cause or matter”. I would note that
Order XVI, Rule 11 of the English rules corresponds to
paragraph 1716(2)(b) of the Rules of this Court. It seems to me
that the meaning which the courts have given to the word “necessary” in that
paragraph is of assistance in understanding the intent of the words
“unnecessarily made a party” in paragraph 1716(2)(a). In concurring
with his colleagues that the presence of the proposed new defendant was not
“necessary”, Devlin J. (as he then was) stated, at page 380:
The person to be
joined must be someone whose presence is necessary as a party. What makes a person
a necessary party? It is not, of course, merely that he has relevant evidence
to give on some of the questions involved; that would only make him a necessary
witness. It is not merely that he has an interest in the correct solution of
some question involved and has thought of relevant arguments to advance and is
afraid that the existing parties may not advance them adequately. That would
mean that on the construction of a clause in a common form contract many
parties would claim to be heard, and if there were power to admit any, there is
no principle of discretion by which some could be admitted and others refused.
The court might often think it convenient or desirable that some of such
persons should be heard so that the court could be sure that it had found the
complete answer, but no one would suggest that it is necessary to hear them for
that purpose. The only reason which makes it necessary to make a person a
party to an action is so that he should be bound by the result of the action,
and the question to be settled therefore must be a question in the action which
cannot be effectually and completely settled unless he is a party.
(ibid. at paragraph 20 [emphasis added])
[12]
In other words, is it
necessary to grant the Commissioner status as a party to completely adjudicate
and settle the issues raised in these proceedings?
[13]
The Commissioner notes
that his mandate extends to appearing as a party to proceedings. Under
subsection 56(1) of the OLA, “[i]t is the duty of the Commissioner to take
all actions and measures within the authority of the Commissioner with a view
to ensuring recognition of the status of each of the official languages and
compliance with the spirit . . . of this Act”.
[14]
The Commissioner argues
that he must be granted status as a party because of the importance of the
issue to all members of the travelling public and because of the potential
repercussions on a number of OLA provisions. He further argues that the fact
that the respondents are not represented by counsel underscores the importance
of adding him as a party. Otherwise, the highly complex nature of the arguments
made by Air Canada would put the respondents at a serious disadvantage.
[15]
Finally, the
Commissioner submits that he has a special interest in the case since
a.
as ombudsman
responsible for enforcing the OLA, he wants to ensure that Air Canada complies
with its duties;
b.
the Court’s decision
could have an impact on the Commissioner’s investigations into other
institutions; and
c.
the Court’s decision
will affect the interpretation of a number of provisions of the OLA.
[16]
Meanwhile, Air Canada objects to the Commissioner’s motion. It argues that the complexity of the issues
does not justify the Commissioner’s motion. It notes that at trial, the
Commission was allowed to file a complex and well-documented memorandum and to
make oral representations on all of the issues.
[17]
Air Canada submits that the Commissioner does not meet the criteria for being added as a party.
It notes that the fear that the parties to the proceedings will not present
their arguments adequately is not enough. Moreover, the Commissioner has not
shown that he would be directly affected by the judgment to be rendered by this
Court (Warner-Lambert Canada Inc. v. Canada (Minister of Health), 2001
FCA 116 at paragraph 5).
[18]
Air Canada also submits that in the absence of a cause of action raised against the
Commissioner, he cannot be added as a party. On this point, the appellant
relies on the judgment of this Court in Shubenacadie Indian Band v. Canada
(Minister of Fisheries and Oceans), 2002 FCA 509, 299 N.R. 241, in which Justice Evans wrote as follows at paragraphs 6 and 7:
The second issue is
whether the UNSI and the CMM were properly joined as defendants pursuant to
Rule 104, regardless of the fact that they had been respondents in the
application for judicial review. In our view, they were not. The plaintiffs’
statement of claim states no cause of action against them, seeks no relief
against them, and makes no allegations against them. Moreover, it is not
clear that the Federal Court would have jurisdiction over UNSI and CMM as
defendants to the action.
It may well be that
the UNSI and CMM will be able to adduce evidence relevant to the plaintiffs’
statement of claim, and that their members may be adversely affected by the
outcome of the litigation. However, neither is sufficient to enable the UNSI
and CMM to be joined as necessary defendants to the action.
[emphasis
added]
[19]
Finally, Air Canada fears that adding the Commissioner as a party to the appeal will change the nature
of the case on appeal, since the proceeding would cease to be one brought
solely by a private party. Air Canada argues that it would be seriously
prejudiced. First off, I note that Air Canada’s fear is baseless. As the
Commissioner observes in his reply at paragraph 9, an order of this Court
would not have retroactive effect. In other words, the issues in this appeal
would be unaffected, like the factual background that led to the trial judge’s
decision.
[20]
I am of the opinion
that the Commissioner’s motion must be denied. True, this appeal is complex.
The conflict between the OLA and the Montréal Convention, the appropriateness
of a general order to comply with the Act, the appropriateness of a structural
order and the introduction of similar complaints and previous reports of the
Commissioner by the respondents Thibodeau, to name a few of the legal issues,
are indeed subtle questions. However, the complexity of these issues is not the
factor on which the exercise of my discretion should be based.
[21]
At trial, the
Commissioner chose to seek intervener status from the Federal Court. A few days
later, on June 11, 2010, the Court allowed its application and granted the
Commissioner intervener status.
[22]
As Air Canada rightly points out, the Commissioner chose not to be a party to the proceedings at
trial, suggesting that [translation] “it was more appropriate for the
applicants [Michel Thibodeau and Lynda Thibodeau] to institute proceedings
against the respondent [Air Canada] in order to raise the breaches to which
they personally were subjected as well as the systemic breaches”.
[23]
As the saying goes, the
Commissioner has made his bed and now must lie in it. It was at that moment
that he made his choice; in my view, it is a bit late to reverse his position.
[24]
All in all, the
Commissioner has not shown why leave to act as a party on appeal was necessary
to completely and adequately settle all of the issues. Intervener status is
amply sufficient.
CONCLUSION
[25]
I
would dismiss the principal motion of the Commissioner of Official Languages.
[26]
Considering
Air Canada’s consent to the Commissioner’s alternative application, I would
grant the Commissioner the right to intervene on appeal. This right would
include the right to file a memorandum, make representations at the appeal
hearing and appeal against the decisions of this Court.
“Pierre Blais”
Certified true
translation
Michael Palles
Email this Content